Hyperlinked Files in eDiscovery: The Challenge of Contemporaneous Versions

In today's digital workplace, the way we share and access documents has fundamentally changed. Rather than attaching files to emails, organizations increasingly rely on hyperlinks to cloud-stored documents, creating new challenges for eDiscovery practitioners and in-house counsel. One of the most complex issues involves determining the "contemporaneous version" of a hyperlinked document – particularly when multiple recipients access the same link at different times. This shifting landscape demands a fresh examination of what constitutes the relevant version for discovery purposes.

The Evolution of Document Sharing

Traditional document sharing through email attachments created clear snapshots in time. When a file was attached to an email, recipients received an exact copy of that document as it existed when it was sent. This static nature made it relatively straightforward to determine the version that should be considered contemporaneous with the communication.

However, the widespread adoption of cloud storage solutions like SharePoint, Google Drive, and Box has fundamentally altered this paradigm. When sending hyperlinks instead of attachments, the document remains dynamic – potentially changing between when the link is sent and when various recipients access it.

The Multiple Recipients Dilemma

Consider this common scenario: A senior executive sends a link to a strategic planning document to ten team members on Monday. The document undergoes revisions on Tuesday. Five team members access the link on Monday, three on Tuesday after the changes, and two on Wednesday. Which version should be considered contemporaneous with the communication?

This scenario raises several critical questions:

1. Is the relevant version the one that existed when the link was sent?
2. Should each recipient's first viewing be considered the contemporaneous version for that individual?
3. How do subsequent viewings impact the analysis?

Legal and Practical Implications

The answers to these questions have significant implications for preservation obligations, collection methodology, and production protocols. Organizations must consider:

Preservation Obligations

The duty to preserve potentially relevant evidence attaches when litigation is reasonably anticipated. With hyperlinked documents, this raises complex questions about which versions must be preserved. Best practices suggest preserving:

- The version that existed when the link was shared

- Any versions accessed by recipients during the relevant time period

- Version history logs showing when changes were made and by whom

Collection Challenges

Traditional collection methods may not adequately capture the various potentially relevant versions of hyperlinked documents. Organizations need sophisticated tools that can:

- Track when links were shared

- Record and preserve which versions were accessed by specific individuals

- Maintain audit logs of document modifications beyond the default retention in file sharing systems

- Capture version history with associated metadata

Best Practices for Managing Hyperlinked Content

1. Implementation of Version Control Systems

Organizations should implement robust version control systems that automatically track:

- Document modifications

- Access logs

- Version history

- User interactions

2. Clear Internal Policies

Develop and communicate clear policies regarding:

- The use of hyperlinks vs. attachments

- Expected retention periods for different versions

- Documentation requirements for significant changes

- Access tracking protocols

3. Technical Solutions

Invest in technologies that can:

- Automatically capture versions when links are shared

- Track recipient access

- Maintain comprehensive audit trails

- Enable efficient collection of relevant versions

4. Modified Legal Hold Procedures

Update legal hold procedures to address explicitly :

- Preservation of hyperlinked content

- Version history requirements

- Access log retention

- Metadata preservation

Practical Recommendations for eDiscovery Practitioners

Early Case Assessment

During early case assessment, consider:

- Identifying communications containing hyperlinks to potentially relevant documents

- Determining which versions of those documents might be relevant

- Assessing the availability of version history and access logs

- Evaluating technical capabilities for collecting different versions

ESI Protocols

Develop or amend ESI protocols to specifically address:

- Treatment of hyperlinked documents

- Version determination methodology

- Production format for multiple versions

- Associated metadata requirements

Collection and Processing

Implement collection procedures that:

- Capture all potentially relevant versions

- Maintain clear chains of custody

- Preserve essential metadata

- Document access history

The Future Landscape

As organizations continue to evolve toward more dynamic document sharing methods, the challenges surrounding contemporaneous versions will likely increase. Future developments may include:

- Advanced analytics tools specifically designed for tracking hyperlinked content

- Blockchain-based solutions for version verification

- New legal precedents establishing clearer standards

Conclusion

The question of what constitutes the contemporaneous version of a hyperlinked file remains complex and context-dependent. Organizations must balance practical considerations with legal obligations while maintaining defensible practices. Success requires a combination of:

- Clear organizational policies

- Robust technical solutions

- Updated legal hold procedures

- Sophisticated collection methodologies

As courts continue to address these issues, practitioners should stay informed about evolving standards and best practices. The key is to implement systems and procedures that can defensibly identify and preserve relevant versions while maintaining the ability to demonstrate reasonable and good-faith efforts to meet discovery obligations.

Most importantly, organizations should proactively address these challenges rather than waiting until they face discovery requests. By implementing comprehensive solutions now, they can better position themselves to handle future discovery obligations efficiently and effectively.

The dynamic nature of hyperlinked content has forever changed the eDiscovery landscape. Success requires adapting to these changes while maintaining the fundamental principles of authenticity, accessibility, and defensibility that have always governed discovery obligations.